NLRB Taking a New Look at Employee Use of Work Email

The National Labor Relations Board (NLRB) again is reflecting changes resulting from Trump administration influence, this time regarding employees’ rights to use employer email for protected concerted activities like soliciting support for a labor union, organizing a strike, or complaining about management. Earlier this month, the Board invited briefs on whether it should uphold, modify, or overrule the Obama-era ruling that affirmed those rights.

Overturning the decision could permit employers to restrict non-work use of their email systems by employees, even if the restriction limits the employee’s rights under Section 7 of the National Labor Relations Act to engage in protected activity at work.

Given the current NLRB’s proclivity to favor employers, it likely will modify the prior decision — and may overturn it completely. The Board also may take steps to make any change permanent and to expand its scope to include other electronic communications like message boards and instant messenger services. Even so, Board members Pearce and McFerran dissented from the decision to solicit briefs, saying that it was inappropriate in light of a pending appeal of the original case that led to the decision (Purple Communications) and their view that the decision has not caused significant challenges for employers, employees, unions, or the NLRB.

We will keep you posted on this and any other developments that will affect workplace standards. If you have questions or concerns, we are happy to help.